Presentation at a training seminar for Civil Society Organizations in Kiev, Ukraine, 18 September 2015 Public Engagement in Constitution Making Thorvaldur Gylfason
Outline 1) Preliminaries 2) Background and history 3) Some numbers 4) Pots and pans 5) Democracy in action 6) Resistance 7) Conclusion
Dilemma • Being asked to talk about the way public engagement was used in the making of a new crowd-sourced constitution in Iceland after the 2008 crash is a bit like being asked to talk about the beauty of a stolen object – True, public engagement was quite helpful – Less well known is the fact that politicians are at present keeping the constitution on ice – Here is the Iceland story, and lessons to be drawn
Preview of conclusions • Public engagement, including the use of social media, can facilitate policy dialogue on constitutional and other issues, especially when democracy is weak or governance is corrupt, or both • Yet, public engagement, including the use of ICT (Information and Communications Technology) and crowd sourcing, is not a substitute for representative democracy but rather a tool for fortifying democracy
Overview • First-world economy, third-world politics – Decaying social capital, low trust, etc. – Need for public engagement • Iceland’s response to 2008 collapse – IMF-supported rescue operation – went well – Prosecutions of financial fraud – underway • Thirty prison years thus far, and counting – Constitutional reform – held hostage • Strong popular support in 2012 referendum followed by overt political attempts to thwart the will of the voters – Some of what you will hear today will sound familiar
Background and history • Many new constitutions in Europe • After the collapse of communism in 1989-91, East and Central Europe adopted about 25 new constitutions, all except Hungary • Most constitutions are written or revised following economic or political upheaval because crises often trigger demands for a fresh start or expose flaws to be fixed – In quiet times, people and politicians most often feel they have other things to think about • Exceptions: Sweden (1974), Canada (1982)
Background and history Jon Elster (1995) describes seven waves of constitution making following • the US Declaration of Independence in 1776 1) During 1780-91 the US, Poland, and France adopted new constitutions, as did Sweden in 1809 and Norway in 1814 2) Following revolutions in Europe in 1848 several countries adopted new constitutions some of which did not last long because the revolutions producing them were suppressed 3) After World War I (1914-18) Poland, Czechoslovakia, and defeated Germany passed new constitutions 4) After World War II (1939-45) Italy, Germany, and Japan had new constitutions essentially dictated to them by the victors 5) As the sun set on the colonial empires of the UK, France, and others after 1945, new constitutions in Asia and Africa 6) Authoritarian regimes in Southern Europe were driven from power in 1974-78 and Greece, Portugal, and Spain adopted new democratic constitutions 7) The seventh and last wave swept East and Central Europe after the collapse of communism beginning in 1989, with about 25 new constitutions, all except Hungary (until 2012)
Background and history • Yet, financial crises have not in the past given rise to new constitutions – The Great Crash of 1929 was followed by changes in laws, erecting firewalls between commercial banking and investment banking • Glass-Steagall Act of 1933 in US plus SEC in 1934 • Had a constitutional amendment been better? • Iceland is an exception – Financial crash of 2008 had deep roots – This is why the pots-and-pans revolution after the crash demanded, among other things, a new, or at least revised, constitution
Background and history • One of Iceland’s key constitutional problems is the absence of effective checks and balances that has bred executive overreach, i.e., made it possible for the executive branch to grab too much power from parliament and the courts • Two examples – On their own, two ministers decided to enlist Iceland in the “Coalition of the willing” invading Iraq in 2003 without any consultation with, or even possible recourse for, the parliament – After Supreme Court in 1998 ruled that the system of fisheries management is discriminatory and unconstitutional, Court reversed its opinion in 2000 under visible pressure from same two ministers
Background and history • The supremacy of the executive branch over the legislative and judicial branches made it easier for the government to join hands – some would say jump into bed – with the bankers – First, by selling their political cronies state banks at ‘modest’ prices, Russian style – Then, by making sure that the banks would not be bothered too much by regulatory restraint and inquisitive financial supervision • The banks gave and lent money generously to political parties as well as to individual politicians (SIC report) • $8 per person compared with 60 cents in US in 2010
Background and history • Iceland’s constitution dates from 1944 when Iceland separated from Nazi-occupied Denmark – Derived from Denmark’s (and Norway’s) constitution, with nationally elected president substituted for hereditary king, the Icelandic constitution was intended to be only provisional – Hails from 1874, or rather 1849 – Parliament promised to revise it, but has failed to do so since 1944 despite repeated attempts – Strange for a newly independent country to copy the mother country´s constitution rather than make a new one • It took the crash of 2008 for the government to give in at last and decide to convene a Constitutional Assembly to do the job
Income per person and per hour ( C urrent international $, ppp) GNI per capita 1990-2013 GNI per hour worked 1990-2013 70000 80 70 60000 60 50000 50 40000 40 30000 30 20000 20 10000 10 0 0 Denmark Finland Iceland Denmark Finland Iceland Norway Sweden Norway Sweden Source: World Bank World Development Indicators and The Conference Board Total Economy Database ™, January 2013, http://www.conference-board.org/data/economydatabase/.
Corruption 2012 Business corruption Political corruption 100 80 90 70 80 60 70 50 60 50 40 40 30 30 20 20 10 10 0 0 Source: Gallup, Source: Transparency International. http://www.gallup.com/poll/165476/government- corruption-viewed-pervasive-worldwide.aspx.
Interpersonal trust and trust in institutions Trust in other people Iceland: Trust in institutions 2013 160 90 80 140 70 120 60 50 100 40 80 30 20 60 10 40 0 20 0 Iceland Finland Denmark Sweden Norway 1999 2005 1999 2006 2007 Source: World Values Survey. Source: Capacent (Gallup).
Beginnings: Pots and pans • Iceland’s banking system crashed in 2008 – Biggest trauma in nation’s history – Existential threat – People took to the streets, young and old, banging their pots and pans, demanding action – Government resigned • New post-crash government listened to the people – Admitted to mistakes and structural flaws – Offered to clean up the political culture – Promised reforms, including a new constitution
Beginnings: Pots and pans • “Criticism of Iceland‘s political culture must be taken seriously and [Parliament] stresses the need for lessons to be learned from it. Parliament resolves that the report of the Special Investigation Commission of the Parliament constitutes a condemnation of the government, politicians, and public administration.” – Parliament´s unanimous resolution in 2010
New post-crash constitution • When countries crash, it is natural to question their constitutional foundations – Iceland has a provisional constitution from 1944 that failed to avert executive overreach at the expense of the legislative and judicial branches of government – Politicians promised a constitutional overhaul for 70 years, but failed to deliver • Up against the wall after the crash, the government admitted that the game was up – Promised a new people’s constitution drafted by a directly elected Constitutional Assembly, not by politicians or political appointees and their lawyers
New constitution: Why? • Two important reasons for having the constitution written by the people rather than by politicians and their lawyers, one local, one universal – Parliament’s long-standing failure to deliver, since 1945 • Other examples of country-specific reasons – Catalonia, Scotland – Constitution is meant to limit the powers of parliament and to lay out, inter alia , the method by which MPs are elected, tasks that would create a conflict of interest if assumed by parliament itself • Karl Popper (1966) put the problem well: – “How can we organize political institutions so that bad or incompetent rulers can be prevented from doing too much damage?”
New constitution: Why? • Since 1944, when Iceland adopted what was essentially a translation of the Danish constitution from 1849, Parliament had consistently failed to keep its promise of constitutional reform – Appears inconsistent to declare independence and still retain constitution of mother country • Consider Catalonia and Scotland today – Only piecemeal adjustments of electoral clauses • Without crash in 2008, no new constitution
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